Juana Villegas, who in 2008 was arrested and shackled to a bed while in labor, spoke during Thursday's rally in downtown Nashville. / Shelley Mays / The Tennessean

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Travis Loller | Associated Press

and Elizabeth BonnerThe Tennessean

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The state Supreme Court is deciding whether a federal program that lets some Davidson County sheriff’s deputies act as immigration agents violates the Metropolitan Charter.

In court on Thursday, attorney Bill Harbison argued that the charter reserves all law enforcement duties for the police while the sheriff’s office is confined to running the jail and serving warrants.

That separation of powers was put in place in 1962 when Nashville and Davidson County combined to form a metropolitan government.

Assistant Metro Attorney Keli Oliver argued that interviewing detainees to determine their immigration status was permissible under the powers granted to the sheriff’s office because it pertains to managing the jail.

A federal judge asked the Supreme Court to decide the question, at the heart of a federal suit challenging the program.

Opponents of the federal program, known as 287(g), believe it unfairly targets for deportation people who commit minor infractions such as traffic violations. Supporters say the program helps the federal government identify lawbreakers.

But the question before the court is a technical one of whether the contract between the sheriff’s office and U.S. Immigration and Customs Enforcement, or ICE, is legal.

Harbison urged the justices to consider a 1964 case in which the court found the sheriff’s office could perform only the duties assigned in the charter and other duties “incidental and necessary” to its primary duties. That does not include law enforcement.

“If a deputy is serving a warrant and sees illegal activity they don’t arrest someone, they call the police,” he said.

Harbison argued that the 287(g) program was not necessary to running the jail because the jail operated for 45 years without it. And he suggested that approving this agreement could open the door to other types of agreements, such as allowing deputies to investigate inmates for the Internal Revenue Service.

He also suggested Sheriff Daron Hall might have entered into the agreement with ICE for political purposes. Metro police, the body charged with law enforcement, “has not chosen to enter into 287(g),” he said. “An elected official has chosen to do so.”

Metro attorney Oliver argued that the charter was not as restrictive as plaintiffs claim.

“The charter doesn’t say the sheriff’s office can never be involved in law enforcement, and it’s silent as to the enforcement of federal law,” she said.

She also said the charter gives the Metro Council the power to determine things that are not explicit in the document. That is what happened when the council voted to approve the memorandum of agreement between the sheriff’s office and ICE, she argued.

U.S. Attorney Matthew Curley, representing ICE, argued for the agreement.

Curley said that immigrants who are in the U.S. without permission are committing an ongoing violation of federal law. He likened that to someone committing a criminal offense while in jail, which the sheriff’s office has a duty to investigate.

Plaintiffs are suing in federal court for an injunction barring the sheriff’s office from participating in 287(g). The federal court will be guided by the Supreme Court’s decision on the charter question.

Protesters march

A few hours before the oral arguments began, more than 100 people marched up Seventh Avenue, their voices booming, as they chanted in English and Spanish, “What do we want? Justice. When do we want it? Now.”

They walked from Downtown Presbyterian Church to the Tennessee Supreme Court building to demonstrate their outrage against Metro’s participation in the 287(g) program.

Throughout the protest some wore handcuffs, but at one point they removed them in unison and tossed them in a trash bin.

Juana Villegas, who was arrested on a charge of not having a driver’s license and detained in 2008 when she was nine months pregnant, shared her much-publicized story of how she was shackled during labor.

“The office of Sheriff Daron Hall treated me in a degrading manner, as if I were not a human being,” Villegas said. “That is how I had my baby, but all of you know that. What perhaps many of you don’t know is that many horrible things continue happening.”

Lena Graber, an attorney with the National Immigration Project in Boston, said that, while this is a Tennessee case, there is no justification for the program anywhere.

“This is a battle in the war against 287(g), and we’re very optimistic about the court ending the agreement between (U.S. Immigration and Customs Enforcement) and the sheriff,” she said. “Ultimately, we have to get ICE to end the program, and this is part of a national movement to fight that situation.